Judge gives earful to man who objected to Azaan
THE dream of Isipingo Beach, Kwazulu-natal, resident not to hear his Muslim neighbours’ “call to prayer” (the Azaan) five times a day – especially at 3.30am – has been shattered.
This week, the Supreme Court of Appeal overturned an earlier order interdicting the Madrasah Taleemuddeen Islamic Institute from disturbing their neighbour’s sleep.
Durban High Court Judge
Sidwell Mngadi earlier ruled that the madrasah must ensure that calls to prayer made from its property were not audible within the buildings of Chandra Ellaurie’s property 20 metres away.
Unhappy with the ruling, the madrasah took the matter on appeal and won its case.
Judge Nambitha Dambuza gave Ellaurie an earful in her judgment for his stance towards Islam. She remarked that “his motivation for pursuing litigation was not advancement of constitutional justice, but rather his dislike of Islam”.
The Supreme Court of Appeal, in an unanimous judgment yesterday, overturned the interdict issued by the high court.
Ellaurie earlier launched an application in the high court in which he criticised Islam. He asked the court to stop the Azaan, or call to prayer, nationally and to shut down the local madressa (school) next to him, which he said had infringed on his right to dignity.
On its property the madrasah conducts a school for Islamic studies. About 340 students live in boarding facilities on the madrasah property, which is spread over three lots.
There is a mosque located on the property and daily five prayers are performed in the mosque. Each prayer is preceded by the Azaan, which is delivered by a Muadhin, to remind people of the Islamic faith to come to prayer. It is the Azaan that had to be inaudible at Ellaurie’s property in terms of the court order.
Ellaurie complained that the Azaans invaded his personal space and that they happened at an “unearthly time”, the first being at around 3.30am at the start of summer.
He complained that they gave a “distinctly Muslim atmosphere to the area” and a lot of non-muslim people found them “repugnant”.
He lamented the growth of the Muslim community in Isipingo
Beach over the 15 years preceding his application to the court, and argued that, as a result of their dominance in the town, Muslim people had become arrogant.
He believed that Islam promoted racism, bigotry and sexism, and paid no regard to the Constitution. He blamed the Constitution for affording protection to all religions, and maintained that, in relation to Islam, the protection was undeserved and must have been extended only as a result of unawareness of the inequities ingrained therein.
Prior to the interdict application, various forms of intervention were undertaken.
Judge Dambuza said: “The main principle of our neighbour law is that, whilst everyone has a right to undisturbed use and enjoyment of their own property, such right is not unlimited.
“A limited interference with property rights and enjoyment thereof by owners of other properties in the same neighbourhood is expected and acceptable in law.”
Judge Dambuza added that mutual tolerance was a civic value restricted by the legal yardstick of reasonableness.
She said in one of the earliest nuisance cases in the country, the court held that for nuisance to be actionable it had to seriously and materially interfere with a plaintiff’s ordinary comfort and existence. This remained the test in law to date, she said.
“Although Mr Ellaurie explained that the first of five daily Azaans was at 3.30am, he did not explain what exactly the nature and level of the noise was, and how long it lasted in each instance.
“He tendered no evidence of what a reasonable Azaan would be in the circumstances. Instead, the evidence tendered was that of his profound dislike of Islam. In fact, he would rather have the Azaan banned from Isipingo Beach altogether,” Judge Dambuza said.
She said he also took exception to what he considered to be an elevation of the Islamic faith above all other religions, which, according to him, were denigrated by the Qur’an.
He referred to the Azaan as a “foreign sound that invades the public and private space”, that “bears down on him”, over which he had no control, and which robbed him of the opportunity “to the quiet enjoyment of his property”.
“The Constitution does not only provide protection for different religious beliefs and affiliation, it also guarantees the freedom to observe and manifest the different religious beliefs,” she said.
Judge Dambuza pointed out that the Constitution prohibited discrimination on the basis of religious belief, culture or affiliation.
“Having regard to all these considerations, there can be no room for the conclusion that the Constitution provides no guarantee for religious practices.”
Having regard to all these factors, the appeal must succeed, the judge said.
The court ordered that Ellauriehe foot the madrasah’s legal bill.